(dissenting).
I dissent from the court’s judgment. The court’s opinion approves the Commission’s determination of the relevant market, a record club market separate from the general record market. It also approves the finding that the exclusive license agreements effectively foreclose a prospective competitor from a market otherwise open to him, and decides that the short terms of the agreements do not lessen their anti-competitive effect. But the court’s judgment nevertheless sets the Commission’s order aside. The essential reason given is that the Commission’s order is stale. In the court’s view, significant and substantial changes have taken place in the market since the hearing examiner completed his hearings and entered his findings, and further evidence is needed because the Commissioner did not sufficiently examine the market structure and at least four new entrants have come into the market since 1963, including the Record Club of America which claims to be the second largest club in the industry.
I am afraid that by the time the market structure is sufficiently examined, further evidence gathered, complaint amended, hearing examiner’s decision filed and the Commission’s order entered, *983several years from now, the market will probably have undergone further significant and substantial changes. A petition for review filed then will speak again of an order unrelated to conditions of the current market.
The Commission’s decision covered petitioner’s practices principally in 1960 and 1961. The court agrees that the Commission properly decided that at that time there was a violation of Sec. 5 of the Act. It is unfortunate of course that in this area there is a perplexing time lag between complaint and order. But the record consists of more than 11,000 pages of testimony and over 1,400 exhibits. A similar perplexity arises for the same reason in anti-trust cases where large companies and a large government are contestants. The situation does not seem to improve as time goes on, but rather to grow worse. The indication seems to be that the evils of the delays inhere in the nature of our legal system and economy, and are “fleas that come with the dog.”
I think that if there are changes in the market which render the Commission’s order unrealistic vis-a-vis the market, after 1962, and changed circumstances require modification of the order, the appropriate procedure is to affirm it, as I think the court should do. If petitioners thereafter wish to achieve a modification, they should have the burden of showing before the Commission that justice requires modification in view of the changed market conditions. The Commission has the power to modify the order under that procedure should it decide to do so. See 15 U.S.C. § 45(b); American Chain & Cable Co. v. FTC, 142 F.2d 909 (4th Cir. 1944). See also International Union of Mine etc. Workers v. Eagle-Pitcher Co., 325 U.S. 335, 342, 65 S.Ct. 1166, 89 L.Ed. 1649, where American Chain is discussed with approval.
I would affirm the Commission’s order.